October30,1987

Honorable John B.Holmes, Jr. Harris County District Attorney 201 Fannin, Suite 200 Houston, Texas 77002 Opinion No.JM-820

Re: Whether a conviction for the offense of issuingabad check will bar aprosecution for theft where both offenses arise out of the same transaction

DearMr. Holmes:

You askwhether the double jeopardy provisions of the state and federal constitutions will bar the prosecution of a defendant for theft ofproperty fraudulently obtained by the passing of aworthless check where the defendant has already been prosecuted for the class C offense of issuance ofabad check. Under the scenario you provide both offenses grow out of the same transaction.

The United .States Constitution and the Texas Constitution prohibit anyperson from twice being placed in jeopardy for the same offense. U.S. Const., amend. V; Texas Const. art. 1, 514.
Section 32.41 of the Penal Codemakes the issuance of abad check a class C misdemeanor. It provides in pertinent part:

(a)Aperson commits an offense if he issues orpasses acheck or similar sight order forthe payment ofmoney knowing that the issuer does nothave sufficient funds in orondeposit with thebank or other drawee for the payment in full of the check or order aswell asall other checks or orders outstanding at the time of issuance.
Article 32.41 was amended in 1987 by adding subsection (g)to read as follows:

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An offense under this section is not a lesser included offense ofan offense under section 31.03 or 31.04 of this code. (Emphasis added.)

Penal Code 932.41(g); Acts 1987, 70th beg., ch. 687, at 5091.

Under article 31.03 of the Penal Code the offense of theft isdefined, as follows:

(a)Aperson commits anoffense if he unlawfully appropriates property with intent to deprive the owner ofproperty.
(b)Appropriation ofproperty isunlawful if:
(1)it iswithout the owner's effective consent:
(2)the property isstolen and the actor appropriates the property knowing it was stolen by another: or (3)property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Aperson commits the offense of theft of service under article 31.04 of the Penal Codewhen the elements are present: following

(a)Aperson commits theft of service if, with intent to avoid payment for service that he knows isprovided only for compensation:
(1)he intentionally orknowingly secures performance of the service by deception, threat, or false token;
(2)having control over the disposition of services of another towhich he is not entitled, he intentionally or knowingly diverts the other's services to his own

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- benefit or to the benefit of another not entitled to them; or (3)having control ofpersonal property under awritten rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals.
The punishment range under articles 31.03 and 31.04 is from aclass Cmisdemeanor to a 2nddegree felony.
The Court of Criminal Appeals, inthe recent case of Mav~v. State, 726 S.W.2d 573 (1987),held that adefendant convicted of involuntary manslaughter could not be prosecuted for driving while intoxicated where both offenses arose out of the same automobile accident. After reviewing numerous United States. Supreme Court and Court of Criminal Appeals decisions and noting that the double jeopardy prohibition may preclude subsequent prosecution, even though each offense may include elements which the other did not, the court stated:

Turning to the instant cause, we first note that both offenses are alleged to have been committed June 12, 1983. The indictment for involuntary manslaughter alleged in part that in Dallas County appellant did:

'thenand there by accident and mistake when oneratina a motor vehicle while intoxicated. andbv reason of such intox-. ication, [emphasis inoriginal] cause the death of [anamed individual], by then and there driving her automobile across a center median [emphasis inoriginal] and colliding with a vehicle occupied by [named individual], and thereby cause the death of said individual.*

The information forDWI alleged inpertinent part that appellant:

'was intoxicated. andunder the influence of intoxicatina liouor. and while so intoxicated and under the influence of

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intoxicatina liouor, [emphasis in original] did then Andythere unlawfully drive and operate amotor vehicle upon a public street and hiahway, [emphasis in original] inDallas County, Texas.' Facially allegations of the greater offense of involuntary manslaughter required proof of the lesser offense, i.e., that appellant operated her motor vehicle upon a public roadway while intoxicated and collided with another vehicle after driving across a center median. The record clearly shows that the State will rely on and seek to prove the DWI case the same act of driving while intoxicated onpublic roadway as 'the reckless act necessary to prove [involuntary] manslaughter.' Vitale, sunra at 421, 100 S.Ct. at 2267.
Thus the record, including charging instruments, judgment of conviction for involuntary manslaughter andhabeas testimony, demonstrates that annellant has been convicted of a crime havina several elements included in itand isnow facina a trial for a lesser offense consistina solelv of one or more of the elements of the crime for which shehas alreadv been convicted. In this Court the State practically concedes the point by relying on the fact that the judgment in State v. Padilla, 101N.M. 58, 678 P.2d 686, 101 N.M. 82, 678 P.2d 710 (1984),was affirmed by an equally divided Supreme Court, Fuaate v. New Mexico, 470 U.S. 904, 105 s.ct. 1858, 04 L.Ed.2d 777 reh. den. 471U.S. 1112, 105 S.Ct. 2349, 85 L.Ed.2d 865 (1985). (Emphasis added.)

726 S.W.2d at 576-577. ?,

Prior to the present Penal Code, the offense of passing a check without sufficient fundswas the only statutory offense involving worthless checks. The prohibited conduct was set forth inarticle 567b of the Penal Code (1939) (repealed). The current Penal Code (1974) allows prosecution under the theft statutes, section 31.03 (general theft) and section 31.04 (theftof services). In addition, section 32.41makes the issuance of abad check -,

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aclass Cmisdemeanor. The Practice Commentary following section 32.41 noted, inpertinent part:

This section expands prior law in thebad check area. Underlying this provision is the belief that the issuance orpassing ofa known bad check is, in itself, not only harmful to the recipient but also injurious to the community at large and is, therefore, aproper subject for criminal sanction without regard to the purpose for which the checkwas givon. For example, even if the immediate recipient gives up nothing in return forthe check, and, therefore, isnot defrauded inthe strict sense of that term, he may further negotiate the check, or deposit itand draw against it. This possibility places him inaprecarious position and creates a threat ofharm to the general public. Another important function of ~the provisiqn is the encouragement of prompt payment ofdishonored checks.

In reviewing the elements of theft and the issuance of a bad check the Court of Criminal Appeals ' Christiansen v. State, 575 S.W.2d 42 (1979), inan appeiy from a theft conviction arising out of the passing of bad checks inthe amount of $241.80~in exchange for fourmoney orders, stated:

The record does reflect that appellant properly requested acharge on the lesser included offense of issuance of abad check under Sec. 32.41, sunra. The key distinction between the offense of theft under V.T.C.A. Penal Code, sec. 31.03, and the offense of issuance of abad check under V.T.C.A. Penal Code, Sec. 32.41~,is whether the defendant in fact receives anyproperty. Receipt ofproperty and proof of its value are critical elements in the offense of theft. They are, however, not required to prove issuance of abad check.

575 S.W.2d at 44.
The court inChristiansen did, however, go on to state, "[a]lthough issuance of abad check, a class C misdemeanor, may under some circumstances be a lesser

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included offense evidence before us have submitted the & at 44-45. of theft, there is nothing in the tohave required the trial court to - charge on the lesser included offense."

Ina more recent opinion, WcClain v. State, 687 S.W.2d 350 (1985),the Court of Criminal Appeals overruled previous holdings of the court that participation in the initial acquisition was an essential element of the offense of theft. The court concluded that, under the present Penal Code, there was no distinction in the essential elements of the offenses of theft and receiving and concealing stolen property. The court stated that:

The error ofw [633S.W.2d 885, Tex. Crim. App., 19821 isprecipitated by its focus on the 'manner of acquisition' of personal property, a focus the Legislature removed entirely from the theft statute in the 1974penal code, then further refined in the 1975 legislative session. Just as it has been inthe past recognitied that the actor's intent to 'benefit himself anotherr or to 'withhold the prope$ permanently' are not essential to commission of a theft, so too has it now been acknowledged that the 'manner of acguisition' is inconsequential to the evil of a theft: the gravamen of theft is in deDriVino the true owner of the use, benefit. eniovment orvalue ofhis vrovertv, [emphasis inoriginal] without his consent.
Thus, thevarying misleading emphases on aspects of acquisitive conduct proscribed under former penal codeswere sifted out by the new, and a single offense was distilled from the common elements contained in each: clearlv. if one exercises control over proDertv knowina it iswithout the owner's consent. and intendina todevrive the owner f it, it matters not 'how' zhe vroDertv the actor a t

[emphasis added] whether ge intended to'benefit himself or another, intended 'permanently' todeprive the owner, etc.

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. . Section 31.03(b)(l) and (2)simply do not provide the 'nature of the forbidden conduct;' instead, they areboth only ‘circumstances surroundinq [emphasis in oriainall the conduct.# which innowav constitute - 'acts or .omissions' of- the defendant. It follows that these provisions have evidentiary import only in terms of establishing the \unlawfulness' of the appropriation, and the defendant is not entitled to have them expressed in the State's charging instrument as amatter of 'form'under Thomas v. State, 621 S.W.2d 158 (Tex.Cr. App. 1981) (Opinion on state's motion forrehearing), much less substance.

**687** S.W. 2dat 353-55.
While the Legislature **by** its amendment to article 32.41was probably expressing the intent that there be no bar to the imposition ofmultiple punishments under that statute and the appropriate theft statute, webelieve the crucial test in determining whether jeopardy attaches under the state and federal constitutions requires us to look at the elements ofthe respective offenses. Unlike the defendant inm, adefendant convicted for issuance of abad check has notbeen convicted of a crime having any of the elements of the offense of theft. WcClain made itclear that it "matters not" how the accused acquired the property ina theft **case.** On the other hand, the issuance orpassing of **a** known bad check isthe gravamen of the offense under section 32.41.

It isour opinion that the courts will hold that the trial of an accused for the offense of issuance of a bad check under section 32.41 of the Penal Codewill not serve as abar under the double jeopardy provisions of the state and federal constitutions to a prosecution for theft (undersection 31.03 or 31.04 of the Penal Code) growing out of the same transaction.

SUMMARY
The trial ofan accused forthe offense of issuance ofa bad check under section 32.41 of the Penal Codewill not serve as a bar under the double jeopardy provisions of

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the state and federal constitutions to a prosecution fortheft (under sections 31.03 or 31.04 of the Penal Code) growing out of the same transaction.

JIM MATTOX Attorney General of Texas

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by TomG. Davis Assistant Attorney General

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